Takings, Standing, and Those Nasty Neighbors

The bungalow in Nollan

Most lawyers reading this page are familiar with Nollan v. Calif. Coastal Comm’n, the 1987 Supreme Court case holding that exactions in exchange for land use permits must show an “essential nexus” between the purported harm generated by the permit and aims of the exaction. (More precisely, Nollan gave heightened scrutiny to finding that nexus.). Whatever one thinks of the holding, it could possibly lead to some perverse outcomes. Here’s the hypothetical that I give to my students:

Suppose you’ve got a landowner on a beach in Malibu, who wants to put up a big mansion and maybe a conference center on the beach. Of course, the community hates it because it will increase traffic and congestion, and wants the property drastically reduced in size, which the landowner rejects. But then the local Sierra Club comes to the planning commission and the landowner and says, “Look: adjoining the property is some wonderful land that would be perfect for hiking trails to view the ocean. Why doesn’t the landowner dedicate the land for hiking trails to the city? That way, the city residents get great trails, which are better than the reduced traffic anyway, and the landowner gets the permit to do what it wants to do? It’s a win-win.” Before Nollan, you’d probably do that deal. Afterwards, you can’t, because there is no nexus between the permit and the exaction. So in fact, there are situations where Nollan is preventing mutually beneficial deals between cities and landowners.”

That’s true theoretically, but then the students usually ask: who will sue? Presumably, the landowner won’t, because then it will unravel the deal. Then who? My very tentative answer has been: who always sues? The neighbors. From the standpoint of the guy living next door to the landowner in the hypothetical, it’s a lose-lose. He gets all the impacts, but the benefits are distributed throughout the city.

But then there is a follow-up question: do the neighbors have standing? That is trickier, and I think quite opaque. We all know the famous trilogy from Lujan v. Defenders of Wildlife, which held that for a plaintiff to have standing in federal court, it must show: 1) injury-in-fact; 2) causation; and 3) redressability. Does the disgruntled neighbor have standing?

I have always thought so. He certainly suffers 1) an authentic injury; caused by 2) the permit; which 3) would go away if it was struck down. But the question is: what has to cause the injury-in-fact? Certainly in this hypothetical the permit does, but the exaction does not. Which one is primary from standing purposes? It’s not clear, and that is especially because from the standpoint of practical reality, the two are linked: the landowner only gets the permit if he dedicates the property. In the real world, the two cannot be distinguished.

I first began to consider these issues when reading Bill Fischel’s important work, Regulatory Takings: Law, Economics, and Politics. Bill makes a similar argument concerning the potential of Nollan to prevent mutually beneficial deal-making. Perhaps because he isn’t a lawyer (and perhaps because the book predates Lujan), Bill does not deal with the standing issue. Instead, the example he uses for the neighbor’s lawsuit is Municipal Art Soc’y v. City of New York, where the city insisted on a monetary exaction for a developer in Columbus Circle, and the neighbors sued because the City was going to spend the money elsewhere. But Municipal Art Soc’y is a state court case based upon the New York State little NEPA statute: it isn’t really a takings case to begin with. So that doesn’t work.

The plot thickens. Lujan applies to standing in federal court. But of course now, the vast majority of Takings case are heard in state court because of the ripeness doctrine set forth in Williamson County Regional Planning Comm’n v. Hamilton Bank. Williamson County held that because the Takings Clause only bans takings without just compensation, the state must be given an opportunity to compensate and that that opportunity includes state court proceedings. And if that is so, then the Lujan requirements are inapposite: the issue is state standing rules, which are usually far more liberal than in federal court.

So especially in light of Williamson County, I think that the aggrieved neighbor would have the right to sue. That means that Nollan would in fact prevent mutually beneficial dealing: in the hypothetical I mentioned above, Malibu would probably condition the permit on a drastic reduction in size, which does not benefit the landowner at all. I would be interested in hearing if others have a similar take, or if there has been scholarly work on the issue: I haven’t seen it, but that hardly means it isn’t out there.

Oh yes, absolutely. And theoretically, I suppose that the landowner could accept the deal with the exaction, take the permit, and then turn around and sue the city. So question: if the landowner also waived its right to sue as part of the deal, would courts enforce that waiver, or declare it unenforceable as part of unconstitutional conditions? I imagine that the same justices who tut-tutted about taking the bitter with the sweet in Roth and Rust would suddenly become sympathetic, but I don’t know. Second, if the landowner is a developer and thus a repeat player, it probably wouldn’t, because it would never develop in this town again. That’s why I’m focused on the neighbor. But conceivably, the landowner could sue.

Oh yes, absolutely. And theoretically, I suppose that the landowner could accept the deal with the exaction, take the permit, and then turn around and sue the city. So question: if the landowner also waived its right to sue as part of the deal, would courts enforce that waiver, or declare it unenforceable as part of unconstitutional conditions? I imagine that the same justices who tut-tutted about taking the bitter with the sweet in Roth and Rust would suddenly become sympathetic, but I don’t know. Second, if the landowner is a developer and thus a repeat player, it probably wouldn’t, because it would never develop in this town again. That’s why I’m focused on the neighbor. But conceivably, the landowner could sue.

Jonathan, I’m confused by your hypothetical. Never mind standing. What substantive claim would the neighbors have? A takings claim would only be available to the injured landowner, and would only allow that landowner to demand compensation for the unjustified condition. If the landowner doesn’t object to the condition, I don’t see that anyone else could. Even if the landowner does object to the condition, I don’t see how the neighbors could use a takings claim to object to permit issuance. Am I missing something here?

Jonathan, I’m confused by your hypothetical. Never mind standing. What substantive claim would the neighbors have? A takings claim would only be available to the injured landowner, and would only allow that landowner to demand compensation for the unjustified condition. If the landowner doesn’t object to the condition, I don’t see that anyone else could. Even if the landowner does object to the condition, I don’t see how the neighbors could use a takings claim to object to permit issuance. Am I missing something here?

Hmmm…maybe I’m confused. It seems to me that the SUBSTANTIVE claim would be straightforward. The city conditioned a permit on an exaction that has no nexus to the harms caused by the development. That’s a straightforward Nollan violation. The question is whether the neighbors could sue over it. That seems to me to be a standing question.

Think about it this way. Suppose that BLM does something horrible to endangered species on public lands (hard to imagine, I know). Then NRDC wants to sue over it. The question is: why does NRDC have the right to sue over it? That’s a standing question. It seems to me that it’s the same posture. No?

Hmmm…maybe I’m confused. It seems to me that the SUBSTANTIVE claim would be straightforward. The city conditioned a permit on an exaction that has no nexus to the harms caused by the development. That’s a straightforward Nollan violation. The question is whether the neighbors could sue over it. That seems to me to be a standing question.

Think about it this way. Suppose that BLM does something horrible to endangered species on public lands (hard to imagine, I know). Then NRDC wants to sue over it. The question is: why does NRDC have the right to sue over it? That’s a standing question. It seems to me that it’s the same posture. No?

If I were your law student, I would ask: what if erosion maps show that sea-level rise will cause the mansion/conference center to interfere with public tidelands over the lifetime of the property as the mean high tideline migrates inland? Also, I agree with Holly: the only injury is to the landowner, who, in the words of the Nollan court, lost from her bundle of sticks the right to exclude others from her property.

If I were your law student, I would ask: what if erosion maps show that sea-level rise will cause the mansion/conference center to interfere with public tidelands over the lifetime of the property as the mean high tideline migrates inland? Also, I agree with Holly: the only injury is to the landowner, who, in the words of the Nollan court, lost from her bundle of sticks the right to exclude others from her property.

“[T]he only injury is to the landowner.” Tell that to the neighbor, who has to put up with a mega-mansion and conference monstrosity (as he would no doubt call it) next to his house because of the Sierra Club-brokered deal.

The problem here is that while the neighbor isn’t injured by the exaction, he is injured by the permit, and without the exaction, the permit doesn’t exist. I feel like I am in Torts-land here: the exaction is a proximate cause of the permit. if you asked the neighbor whether exaction injured him, he would probably say, “Yeah! If it hadn’t been for that thing, I wouldn’t have put up with this mansion!”

This is also true in light of the remedy if the court rules in favor of the neighbor. A ruling that goes his way would put the city in a bind. Either 1) pay for the hiking trails, which it won’t do because of the cost; or 2) pull the exaction and thus pull the permit. #2 is exactly the remedy that the neighbor wants. So how could the neighbor not have a legal injury? If the government reverses its action, his grievance is redressed. Hard to say that he wouldn’t have standing to sue there.

“[T]he only injury is to the landowner.” Tell that to the neighbor, who has to put up with a mega-mansion and conference monstrosity (as he would no doubt call it) next to his house because of the Sierra Club-brokered deal.

The problem here is that while the neighbor isn’t injured by the exaction, he is injured by the permit, and without the exaction, the permit doesn’t exist. I feel like I am in Torts-land here: the exaction is a proximate cause of the permit. if you asked the neighbor whether exaction injured him, he would probably say, “Yeah! If it hadn’t been for that thing, I wouldn’t have put up with this mansion!”

This is also true in light of the remedy if the court rules in favor of the neighbor. A ruling that goes his way would put the city in a bind. Either 1) pay for the hiking trails, which it won’t do because of the cost; or 2) pull the exaction and thus pull the permit. #2 is exactly the remedy that the neighbor wants. So how could the neighbor not have a legal injury? If the government reverses its action, his grievance is redressed. Hard to say that he wouldn’t have standing to sue there.

The neighbor may be “injured” by the permit in the layman’s sense of term, in that she may be inconvenienced and irked by what’s going on next door; but the neighbor has no legally protected right not to have a mega-mansion built next door (unless the neighbor can show it constitutes a nuisance) and therefore no legal claim a court can redress. Even if we’re talking about whether the neighbor’s suit survives a constitutional standing analysis, a Lujan “injury in fact” must be the invasion of a legally protected interest. Furthermore, third party standing is barred–unlawful government action is not enough by itself to create an injury. Without an invasion of a personal right, the neighbor cannot just sue because the government has done something illegal to someone else. Thus, I do still think the only injury (i.e, invasion of a legal right) is to landowner.

The neighbor may be “injured” by the permit in the layman’s sense of term, in that she may be inconvenienced and irked by what’s going on next door; but the neighbor has no legally protected right not to have a mega-mansion built next door (unless the neighbor can show it constitutes a nuisance) and therefore no legal claim a court can redress. Even if we’re talking about whether the neighbor’s suit survives a constitutional standing analysis, a Lujan “injury in fact” must be the invasion of a legally protected interest. Furthermore, third party standing is barred–unlawful government action is not enough by itself to create an injury. Without an invasion of a personal right, the neighbor cannot just sue because the government has done something illegal to someone else. Thus, I do still think the only injury (i.e, invasion of a legal right) is to landowner.

Standing and the merits may be difficult to sort out here, and it doesn’t really matter on a practical basis. But conceptually, as a teacher I always try to get my students to sort out the different arguments. So here’s another go at this.
The standing question (if we’re in federal court) is whether the prospective plaintiff suffers “actual and imminent” injury by issuance of the permit, whether that injury is “fairly traceable” to the defendant’s action, and whether it can be redressed by a favorable court ruling. The merits question is whether the plaintiff has a legally protected right that’s been violated by permit issuance.
If the plaintiff is the landowner and the problem is that the permit is conditioned on an exaction without an adequate nexus, both questions can be answered in the affirmative. Landowner has standing — she is injured by the condition, which is imposed by the defendant government entity, and if she wins the court can require compensation. Landowner also has a good claim on the merits, because she has a Fifth Amendment right not to have her property taken without compensation.
Both outcomes are different if the plaintiff is a neighbor. For standing, I’m ready to accept that neighbors will be injured by issuance of the permit, and of course permit issuance is fairly traceable to the issuing agency. Neighbors’ standing probably fails, though, on the redressability prong. A court faced with a takings challenge can only order compensation. It cannot invalidate the action, because there is no right not to have property taken, only to have compensation if property is taken. Maybe the government would choose not to issue the permit if it had to compensate, but that’s going to be a tough showing to make.
Even if they could establish standing, though, neighbors would lose on the merits. As a matter of federal law, neighbors have no right not to have the government impose unconstitutional conditions on someone else or take someone else’s property. Unless they can find something else wrong with the permit issuance they will lose. Neighbors, therefore, can’t use Nollan/Dolan to prevent landowner/government bargains, at least not unless local land use law gives them a procedural objection on that basis.

Standing and the merits may be difficult to sort out here, and it doesn’t really matter on a practical basis. But conceptually, as a teacher I always try to get my students to sort out the different arguments. So here’s another go at this.
The standing question (if we’re in federal court) is whether the prospective plaintiff suffers “actual and imminent” injury by issuance of the permit, whether that injury is “fairly traceable” to the defendant’s action, and whether it can be redressed by a favorable court ruling. The merits question is whether the plaintiff has a legally protected right that’s been violated by permit issuance.
If the plaintiff is the landowner and the problem is that the permit is conditioned on an exaction without an adequate nexus, both questions can be answered in the affirmative. Landowner has standing — she is injured by the condition, which is imposed by the defendant government entity, and if she wins the court can require compensation. Landowner also has a good claim on the merits, because she has a Fifth Amendment right not to have her property taken without compensation.
Both outcomes are different if the plaintiff is a neighbor. For standing, I’m ready to accept that neighbors will be injured by issuance of the permit, and of course permit issuance is fairly traceable to the issuing agency. Neighbors’ standing probably fails, though, on the redressability prong. A court faced with a takings challenge can only order compensation. It cannot invalidate the action, because there is no right not to have property taken, only to have compensation if property is taken. Maybe the government would choose not to issue the permit if it had to compensate, but that’s going to be a tough showing to make.
Even if they could establish standing, though, neighbors would lose on the merits. As a matter of federal law, neighbors have no right not to have the government impose unconstitutional conditions on someone else or take someone else’s property. Unless they can find something else wrong with the permit issuance they will lose. Neighbors, therefore, can’t use Nollan/Dolan to prevent landowner/government bargains, at least not unless local land use law gives them a procedural objection on that basis.

@Megan and Holly — Both of you may be right about the notion of a “legally protected interest”, but on the face of it, I don’t see why that should be so. Someone has a legally protected interest if a court says that they have a legally protected interest. What is the way in which federal courts have traditionally determined if they have a legally protected interest? If they have standing! That’s what the standing inquiry is designed to determine. Taxpayers can’t sue over the Defense Department violating the law in a war because they don’t have standing, i.e. they don’t have a legally protected interest. If they can make a Lujan showing, layering another hoop on top of that seems to me to be going past current doctrine, not following it.

Thus, Holly’s point about redressability. You may be right on that, but not necessarily. Consider Justice Stevens’ opinion in Massachusetts v. EPA: that opinion holds that a favorable decision does not have to redress the whole injury, or even part of the injury, if it could potentially do so. Simply striking down EPA’s fleet rules wouldn’t ensure that EPA would write better ones, or that EPA would make an endangerment finding, or that any new rules would even alleviate climate change one iota. Indeed, I think it is pretty good argument to say that the neighbor in my hypothetical is much more likely to get relief, from the city deciding that paying for hiking trails isn’t worth, then Massachusetts was from EPA: 1) deciding to make an endangerment finding; 2) coming up with new fleet rules; 3) those new fleet rules working; and then 4) those new fleet rules reducing climate change enough that Massachusetts could avoid the problems that it will from global warming. Now, at some level, Stevens seems to say that states are different, but the opinion analyzes standing as if it were a normal case. So I think that it is just as easy for the neighbor to say that there is a high probability of the permit going down the tubes as it is for Massachusetts to be benefitted. If that’s so, the neighbor has standing — and thus a legally protected interest.

@Megan and Holly — Both of you may be right about the notion of a “legally protected interest”, but on the face of it, I don’t see why that should be so. Someone has a legally protected interest if a court says that they have a legally protected interest. What is the way in which federal courts have traditionally determined if they have a legally protected interest? If they have standing! That’s what the standing inquiry is designed to determine. Taxpayers can’t sue over the Defense Department violating the law in a war because they don’t have standing, i.e. they don’t have a legally protected interest. If they can make a Lujan showing, layering another hoop on top of that seems to me to be going past current doctrine, not following it.

Thus, Holly’s point about redressability. You may be right on that, but not necessarily. Consider Justice Stevens’ opinion in Massachusetts v. EPA: that opinion holds that a favorable decision does not have to redress the whole injury, or even part of the injury, if it could potentially do so. Simply striking down EPA’s fleet rules wouldn’t ensure that EPA would write better ones, or that EPA would make an endangerment finding, or that any new rules would even alleviate climate change one iota. Indeed, I think it is pretty good argument to say that the neighbor in my hypothetical is much more likely to get relief, from the city deciding that paying for hiking trails isn’t worth, then Massachusetts was from EPA: 1) deciding to make an endangerment finding; 2) coming up with new fleet rules; 3) those new fleet rules working; and then 4) those new fleet rules reducing climate change enough that Massachusetts could avoid the problems that it will from global warming. Now, at some level, Stevens seems to say that states are different, but the opinion analyzes standing as if it were a normal case. So I think that it is just as easy for the neighbor to say that there is a high probability of the permit going down the tubes as it is for Massachusetts to be benefitted. If that’s so, the neighbor has standing — and thus a legally protected interest.

Jonathan: Holly and Megan are surely correct here. The “way in which federal courts have traditionally determined if they have a legally protected interest” is by determining (generally in the context of a Rule 12(b) motion) whether the plaintiff has a cause of action under federal law. Not standing. Standing is an additional and distinct hurdle. Determining whether a cause of action exists – distinct from determining whether a plaintiff has standing – is what 12(b)(6) motions are typically for – See, e.g., Davis v. Passman, http://supreme.justia.com/cases/federal/us/442/228/case.html.
From footnote 18:

“The Court of Appeals appeared to confuse the question of whether petitioner had standing with the question of whether she had asserted a proper cause of action. [citation omitted]. Although the court acknowledged the existence of petitioner’s constitutional right, it concluded that she had no cause of action in part because

‘the injury alleged here does not infringe this right as directly as the injury inflicted in the unreasonable search of Webster Bivens offended the fourth amendment.’

The nature of petitioner’s injury, however, is relevant to the determination of whether she has
‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’ [citations omitted]. And under the criteria we have set out, petitioner clearly has standing to bring this suit. If the allegations of her complaint are taken to be true, she has shown that she ‘personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.’ [citation omitted]. Whether petitioner has asserted a cause of action, however, depends not on the quality or extent of her injury, but on whether the class of litigants of which petitioner is a member may use the courts to enforce the right at issue. The focus must therefore be on the nature of the right petitioner asserts.”

Standing analysis is thus conceptually distinct from whether the plaintiff possesses a cause of action. There are other cases that make this distinction, and many more that hold that a plaintiff either does or does not possess a cause of action under federal law, distinct from standing issues. In state courts as well, most of which don’t have formal “standing” doctrine, the courts focus (for example with a tort claim on behalf of someone who was not actually injured, or a claim on a contract by a non-party to the contract) on whether the individual has a cause of action. In this case, I believe Holly is clearly correct that the Fifth Amendment, as a substantive matter, confers no cause of action upon a person to claim that the government has “taken” someone else’s property without compensation.

Thus, for example, your example involving the Endangered Species Act a couple of comments ago is inapt. The reason NRDC may sue to enforce the ESA is that there is a citizen suit provision in the ESA that confers a cause of action on any person. That’s it. Without that citizen suit provision, there’s no cause of action. And NRDC still (separately) must show it has standing.

Jonathan: Holly and Megan are surely correct here. The “way in which federal courts have traditionally determined if they have a legally protected interest” is by determining (generally in the context of a Rule 12(b) motion) whether the plaintiff has a cause of action under federal law. Not standing. Standing is an additional and distinct hurdle. Determining whether a cause of action exists – distinct from determining whether a plaintiff has standing – is what 12(b)(6) motions are typically for – See, e.g., Davis v. Passman, http://supreme.justia.com/cases/federal/us/442/228/case.html.
From footnote 18:

“The Court of Appeals appeared to confuse the question of whether petitioner had standing with the question of whether she had asserted a proper cause of action. [citation omitted]. Although the court acknowledged the existence of petitioner’s constitutional right, it concluded that she had no cause of action in part because

‘the injury alleged here does not infringe this right as directly as the injury inflicted in the unreasonable search of Webster Bivens offended the fourth amendment.’

The nature of petitioner’s injury, however, is relevant to the determination of whether she has
‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’ [citations omitted]. And under the criteria we have set out, petitioner clearly has standing to bring this suit. If the allegations of her complaint are taken to be true, she has shown that she ‘personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.’ [citation omitted]. Whether petitioner has asserted a cause of action, however, depends not on the quality or extent of her injury, but on whether the class of litigants of which petitioner is a member may use the courts to enforce the right at issue. The focus must therefore be on the nature of the right petitioner asserts.”

Standing analysis is thus conceptually distinct from whether the plaintiff possesses a cause of action. There are other cases that make this distinction, and many more that hold that a plaintiff either does or does not possess a cause of action under federal law, distinct from standing issues. In state courts as well, most of which don’t have formal “standing” doctrine, the courts focus (for example with a tort claim on behalf of someone who was not actually injured, or a claim on a contract by a non-party to the contract) on whether the individual has a cause of action. In this case, I believe Holly is clearly correct that the Fifth Amendment, as a substantive matter, confers no cause of action upon a person to claim that the government has “taken” someone else’s property without compensation.

Thus, for example, your example involving the Endangered Species Act a couple of comments ago is inapt. The reason NRDC may sue to enforce the ESA is that there is a citizen suit provision in the ESA that confers a cause of action on any person. That’s it. Without that citizen suit provision, there’s no cause of action. And NRDC still (separately) must show it has standing.

What’s the old saying? When three people tell you you’re drunk, lie down. I will thus lie down on this. Nollan has been the law for more than a quarter of a century now, and I don’t know of any cases on this, so maybe the answer is in fact obvious.

HOWEVAH: it still isn’t obvious to me why the neighbors WOULDN’T have a “legally protected interest” or “cause of action” etc. under the Takings Clause. No, it wasn’t their property that was taken, but they did get an injury.

So why should they be able to sue under Nollan and Dolan? Well, consider this scenario: in order to get the permit, the landowner has to waive her Nollan and Dolan claims. If the courts enforce such waivers, then effectively Nollan and Dolan are dead letters. If the courts refuse to enforce the waivers, then that means that landowners who just want to go ahead have to wait for months while the city does its Nollan and Dolan spadework; Nollan would then turn out to be anti-landowner, which makes no sense under the Takings Clause. However, allowing the neighbors to sue means that someone will actually be there to police the essential nexus.

An analogy can be found in Trafficante v. Metro. Life, 409 U.S. 205 (1972), in which the Court found a cause of action to white families in a development to sue when Black families were discriminated against, even if the white families themselves suffered no discrimination. The Court found that the statute didn’t expressly allow such a cause of action, but also said that it made sense under the policy of the Fair Housing Act. Now, Trafficante is a statutory case, and the Court was basically finding the Congress created the cause of action. But in the same way that Congress runs the show in creating causes of action in statutory cases, the Court does so in constitutional cases. And given that in Trafficante, it was abundantly clear that Congress had really NOT created a cause of action and that it was just a legal fiction, a Court seeking to ensure the policing of the essential nexus could do the same.

What’s the old saying? When three people tell you you’re drunk, lie down. I will thus lie down on this. Nollan has been the law for more than a quarter of a century now, and I don’t know of any cases on this, so maybe the answer is in fact obvious.

HOWEVAH: it still isn’t obvious to me why the neighbors WOULDN’T have a “legally protected interest” or “cause of action” etc. under the Takings Clause. No, it wasn’t their property that was taken, but they did get an injury.

So why should they be able to sue under Nollan and Dolan? Well, consider this scenario: in order to get the permit, the landowner has to waive her Nollan and Dolan claims. If the courts enforce such waivers, then effectively Nollan and Dolan are dead letters. If the courts refuse to enforce the waivers, then that means that landowners who just want to go ahead have to wait for months while the city does its Nollan and Dolan spadework; Nollan would then turn out to be anti-landowner, which makes no sense under the Takings Clause. However, allowing the neighbors to sue means that someone will actually be there to police the essential nexus.

An analogy can be found in Trafficante v. Metro. Life, 409 U.S. 205 (1972), in which the Court found a cause of action to white families in a development to sue when Black families were discriminated against, even if the white families themselves suffered no discrimination. The Court found that the statute didn’t expressly allow such a cause of action, but also said that it made sense under the policy of the Fair Housing Act. Now, Trafficante is a statutory case, and the Court was basically finding the Congress created the cause of action. But in the same way that Congress runs the show in creating causes of action in statutory cases, the Court does so in constitutional cases. And given that in Trafficante, it was abundantly clear that Congress had really NOT created a cause of action and that it was just a legal fiction, a Court seeking to ensure the policing of the essential nexus could do the same.

Ah – now we’re getting somewhere. That idea makes much more sense to me, in principle, since clearly you’re correct that the Court makes up who has a cause of action, and for what, in constitutional cases. (See, e.g, the entire history of the Court’s Eleventh Amendment jurisprudence.) But I wouldn’t be even a little bit optimistic about the analogy to the Trafficante case, given the lack of a history of interpreting the Fifth Amendment this way, as well as the makeup of the current court.

Ah – now we’re getting somewhere. That idea makes much more sense to me, in principle, since clearly you’re correct that the Court makes up who has a cause of action, and for what, in constitutional cases. (See, e.g, the entire history of the Court’s Eleventh Amendment jurisprudence.) But I wouldn’t be even a little bit optimistic about the analogy to the Trafficante case, given the lack of a history of interpreting the Fifth Amendment this way, as well as the makeup of the current court.

On the history I agree with you, but on the makeup of the current Court, it could go the other way. This Court basically invented Nollan; it will want to see it enforced; and in any event, has shown reasons to want to tie up local governments on land use.

On the history I agree with you, but on the makeup of the current Court, it could go the other way. This Court basically invented Nollan; it will want to see it enforced; and in any event, has shown reasons to want to tie up local governments on land use.